Has Red Lion lost its roar?

In a world humming and flickering with cable TV signals, satellite feeds and the Internet, the Federal Communications Commission continues to find itself debating whether the broadcasting spectrum is a limited or nearly limitless resource.

At the heart of debate is a 29-year-old Supreme Court ruling in Red Lion Broadcasting v. FCC that confirmed the scarcity of the spectrum and thus subjected broadcasters to diminished First Amendment protection.

In that decision, a unanimous court recognized the need for government regulation of broadcasting, saying “it is idle to posit an unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish.”

“With respect to the First Amendment standard, there is only one of them,” Powell told an audience at the Freedom Forum last month. “I do not believe that the growing convergence of technology will allow us to continue to maintain two First Amendments—one for broadcasting and one for everyone else.”

But Commissioner Gloria Tristani says the limited spectrum prohibits its users from exercising full First Amendment rights.

“No one has a First Amendment right to monopolize a broadcast frequency,” Tristani said. “Unlike newspaper owners, every broadcaster knows going in that his ability to pursue his private interests are constrained by the obligation to serve the public interest.”

Nearly three decades after Red Lion, the scarcity debate is stronger than ever. Those supporting Red Lion say the broadcast spectrum remains limited, while those opposing it say the spectrum is wide open.

“Its basic premises, even if they were tenable at the time of judgment, have long since been eroded by dramatic changes in technology and the structure of mass communications in the United States,” Robert O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, wrote recently. “Yet the basic doctrine of Red Lion simply refuses to die.”

In his essay peppered with references to the “claws” and “teeth” of Red Lion, O'Neil asks “Can Red Lion be lanced?,” suggesting that the FCC in conjunction with the courts could, indeed, put the lion to sleep.

But Tristani and Commissioner Susan Ness both say they aren't convinced that the decision can or should be overturned, especially if such action would require prodding by the FCC.

In a speech last week to the Federal Communications Bar Association, Tristani said she didn't “think the commission should be in the business of questioning the court's judgment.”

She noted that both the Supreme Court and Congress have been hesitant to dismiss the scarcity rationale, even though the FCC declared in the 1987 Syracuse Peace Council v. WTVH case that scarcity was a thing of the past.

“The court and Congress have stuck with the scarcity rationale for good reason,” Tristani said. “Scarcity is clearly still with us. If there's anything I've been made aware of over the last six months on the commission, it's the scarcity of the broadcast spectrum. There are still far more citizens who want to speak over the public airwaves than can be accommodated.”

Ness agrees. She says the enormous response of low-power broadcasters to a recent petition for more licenses is evidence that there is more demand for space than the radio and television dials will allow.

But some argue that government can no longer derive its regulatory power from the scarcity of the spectrum. Such power should come into play only when there's an absence of other effective media, they say, noting that this clearly isn't the case today.

“What matters far more than scarcity is the total effect of all feasible methods for transporting a particular piece of information from the speaker to a prospective audience,” writes Jim Chen in an essay “The Last Picture Show” that appeared in the 1996 Minnesota Law Review.

A spokeswoman for FCC Commissioner Harold Furchgott-Roth echoes Chen, saying that the advent of new technology such as cable and digital television and the Internet dismisses the scarcity rationale.

“Spectrum scarcity is an outdated concept,” according to Helgi Walker, one of Furchgott-Roth's legal advisers. “It certainly is not scarce now—or rather, the opportunities for people to express themselves are certainly not scarce, given the proliferation of communication outlets.”

She and Ness note that in several instances where the justices could have nullified the scarcity rationale—namely, Turner Broadcasting System v. FCC in 1994, Times Warner Entertainment v. FCC in 1996 and Reno v. ACLU in 1997—they haven't.

Robert Corn-Revere, former FCC counsel, says a federal appeals court affirmed the FCC's decision about the scarcity rationale in Syracuse Peace Council but the Supreme Court couldn't address the First Amendment issue.

“The lower court didn't touch the constitutional issue, so there was nothing for the Supreme Court to address,” Corn-Revere said. “So Red Lion is still the law.”

Powell says the court system could address the issue again but likely won't until it hears from the commission or Congress that the scarcity rationale is no longer an issue.

“As far back as 1984, the Supreme Court indicated in the League of Women Voters case, that it would await 'some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required,'” Powell said in a recent speech to The Media Institute. “I believe we should be getting those signal fires ready.”

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THE EXPERTS

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.